Chapter 3701-12 Certificate of Need

(A)
"Actual harm, but not immediate jeopardy deficiency"
means a deficiency that, under
42 C.F.R.
488.404 , either constitutes a pattern of
deficiencies resulting in actual harm that is not immediate jeopardy or
represents widespread deficiencies resulting in actual harm that is not
immediate jeopardy.

(1)
An applicant for a certificate of need, including an
applicant whose application was reviewed comparatively with the application in
question;

(2)
Any person that resides or regularly uses long-term
care facilities within the geographic area served or to be served by the
long-term care services that would be provided under the certificate of need or
reviewability ruling in question;

(3)
Any long-term
care facility that is located in the service area where the long-term care
services would be provided under the certificate of need or reviewability
ruling in question;

(4)
The person that requested the reviewability ruling in
question; or

(5)
Third-party payers that reimburse long-term care
facilities for services in the service area where the long-term care services
would be provided under the certificate of need or reviewability ruling in
question.

(1)
A long-term care
facility that is licensed or otherwise authorized to operate in this state in
accordance with applicable law, including a county home or a county nursing
home that is certified under Title XVIII or Title XIX of the Social Security
Act, 49 Stat. 620 (1935), 42
U.S.C. 301 , as amended, that is staffed and
equipped to provide long-term care services, and is actively providing
long-term care services; or

(2)
A long-term care
facility that is licensed or otherwise authorized to operate in this state in
accordance with applicable law, including a county home or a county nursing
home that is certified under Title XVIII or Title XIX of the Social Security
Act, 49 Stat. 620 (1935), 42
U.S.C. 301 , as amended, or has beds
registered under section
3701.07 of the Revised Code as
skilled nursing beds or long-term care beds and has provided long-term care
services for at least three hundred sixty-five consecutive days within the
twenty-four months immediately preceding the date a certificate of need
application is filed with the director of health.

(J)
"Existing bed"
or "existing long-term care bed" means a bed from an existing long-term care
facility, a bed described in paragraph (O) (5) of this rule, or a bed correctly
reported as a long-term care bed pursuant to section
5155.38 of the Revised
Code.

(L)
"Government
unit" means the state of Ohio and any county, municipal corporation, township,
or other political subdivision of the state, or any department, division,
board, or other agency of any of the foregoing.

(M)
"Health
maintenance organization" or "HMO" means a public or private organization
organized under the law of any state that is qualified under section 1310(d) of
Title XIII of the "Public Health Service Act," 87 Stat. 931 (1973),
42 U.S.C. section
300e-9 .

(O)
"Long-term care bed" or "bed" means a bed that is
categorized as one of the following:

(1)
A bed that is located in a facility that is a nursing
home licensed under section
3721.02 of the Revised Code or a
facility licensed by a political subdivision certified under section
3721.09 of the Revised
Code;

(2)
A bed that is located in the portion of any facility,
including a county home or county nursing home, that is certified as a skilled
nursing facility under the medicare program or a nursing facility under the
medicaid program and is included in the authorized maximum certified capacity
of that portion of the facility;

(3)
A bed that is
registered under section
3701.07 of the Revised Code as a
skilled nursing bed, a long-term care bed, or a special skilled nursing
bed;

(4)
A bed in a county home or county nursing home that has
been certified under section
5155.38 of the Revised Code as
having been in operation on July 1, 1993, and is eligible for licensure as a
nursing home bed; or

(5)
A bed held as an approved bed under a certificate of
need approved by the director.

(1)
A nursing home
licensed under section
3721.02 of the Revised Code or
by a political subdivision certified under section
3721.09 of the Revised
Code;

(2)
The portion of any facility, including a county home
or a county nursing home, that is certified as a skilled nursing facility or a
nursing facility under Title XVIII or XIX of the Social Security Act;
or

(3)
The portion of any hospital that contains beds
registered under section
3701.07 of the Revised Code as
skilled nursing beds or long-term care beds.

(Q)
"New long-term
care facility" means any proposed long-term care facility defined in paragraph
(P) of this rule that is not an existing long-term care facility as defined in
paragraph (I) of this rule.

(S)
"Physician"
means a doctor of medicine or osteopathy legally authorized to practice
medicine and surgery by the state of Ohio.

(T)
"Political
subdivision" means a municipal corporation, township, county, school district,
and all other bodies corporate and politic responsible for governmental
activities only in the geographic areas smaller than that of the state to which
the sovereign immunity of the state attaches.

(U)
"Primary service
area" the geographic region, usually comprised of the Ohio zip code in which
the long-term care facility is located and contiguous zip codes, from which
approximately seventy-five to eighty per cent of the facility's residents
currently originate or are expected to originate.

(1)
A person who has
an ownership or controlling interest of at least five per cent in an applicant,
in a long-term care facility that is the subject of an application for a
certificate of need, or in the owner or operator of the applicant or such a
facility; or

(2)
An officer, director, trustee, or general partner of
an applicant, of a long-term care facility that is the subject of an
application for a certificate of need, or of the owner or operator of the
applicant or such a facility.

(W)
"PTCN" is an
acronym for "person transferring a certificate of need" and refers to a person
holding a certificate of need issued on or after April 20, 1995, that transfers
the certificate to another person before the reviewable activity is completed,
or that enters into an agreement that contemplates the transfer of the
certificate of need on the completion of the reviewable
activity.

(X)
"Related person" means an affiliated person or an
individual who, by virtue of blood or adoption, is the spouse, father, mother,
sister, brother, half-sister, half-brother, grandmother, grandfather, or first
cousin of a PTCN.

(Y)
"Review" means the process by which the director of
health examines a certificate of need application to determine whether a
certificate of need for the activity will be granted.

(Z)
"Reviewability
ruling" means a ruling issued by the director of health under division (A) of
section 3702.52 of the Revised Code as
to whether a particular proposed project is or is not a reviewable
activity.

(AA)
"Secondary service area" means the geographic region,
usually comprised of Ohio zip codes not included in the primary service area,
excluding isolated exceptions, from which the facility's remaining residents
currently originate or are expected to originate.

(BB)
"Service area"
means the current and projected primary and secondary service areas to which
the long-term care facility is, or will be, providing long-term care
services.

(DD)
"Third-party
payer" means a health insuring corporation licensed under Chapter 1751. of the
Revised Code, a health maintenance organization as defined in division (I) of
section 3702.51 of the Revised Code, an
insurance company that issues sickness and accident insurance in conformity
with Chapter 3923. of the Revised Code, a state-financed health insurance
program under Chapter 3701., 4123., or 5111. of the Revised Code, or any
self-insurance plan.

(EE)
"To offer" means, with respect to a long-term care
service, that a long-term care facility holds itself out as capable of
providing, or as having the means for the provision of, a specified long-term
care service. Referral to another provider of health services does not
constitute offering of the health service.

(FF)
"Ultimate
controlling interest" means a person who holds a majority of the voting power
within a corporation, business trust, firm, partnership, association, joint
stock company, limited liability company, or insurance company and is:

(A)
The director shall issue
a ruling on whether a particular proposed project
is a reviewable activity (reviewability determination)
. The director may request additional information
necessary to determine whether the activity is a reviewable activity as
described in any provision of rule
3701-12-05 of the Administrative
Code. The director shall issue a ruling not later than forty-five days after
receiving a request for the ruling that is accompanied by the information
necessary to make the ruling. The date that the ruling is mailed to the person
who filed the request shall be the date of issuance of the ruling. If the
director does not issue a ruling in that time, the project shall be considered
to have been ruled not a reviewable activity. A determination that a project is
not a reviewable activity only relates to the project as described in the
request and any additional information and does not authorize conducting a
different, reviewable activity.

(B)
Any affected
person may appeal a reviewability ruling to the director in accordance with
Chapter 119. of the Revised Code. The director shall conduct an adjudication
hearing in accordance with Chapter 119. of the Revised Code. Each person who
appeals to the director shall file with the director, not later than thirty
days after the decision of the director is mailed, a notice of appeal that
designates the decision, ruling, or determination the person is
appealing.

(3)
The renovation
of or addition to a long-term care facility that
involves a capital expenditure of two million dollars or more, not including
expenditures for equipment, staffing, or operational costs.

(b)
A
relocation of beds from one physical facility or site to another, excluding the
relocation of beds within a long-term care facility or among buildings of a
long-term care facility at the same site .

(5)
Any change in the
bed capacity, or site, or
any other failure to conduct the reviewable activity in substantial accordance
with the approved application for which a certificate of need concerning
long-term care beds was granted, if the change is made within five years after
the implementation of the reviewable activity for which the certificate was
granted.

(6)
The expenditure of
more than one hundred ten per cent of the maximum expenditure specified in a
certificate of need concerning long-term care beds.

(B)
A project or the portion of a project that meets the
requirements of this paragraph is not
reviewable . The following
activities are not subject to review under
paragraph (A) of this rule:

(4)
Correction of cited deficiencies that are
in violation of federal, state or local fire, building or safety laws, ordinances,
rules, or regulations and that constitute an
imminent threat to public health or safety;

(5)
Acquisition of an existing
long-term care facility that does not involve a change
in the number of beds;

(6)
Mergers,
consolidations or other corporate reorganizations of long-term care facilities that do not involve a change
in the number of beds;

(A)
Except for
applications for certificate of need under section
3702.593 of the Revised Code,
any application to conduct a reviewable activity as defined in rule
3701-12-05 of the Administrative
Code, shall be subject to this rule.

(B)
Applications for
certificate of need that propose an increase in beds that is attributable to a
relocation of existing beds from an existing nursing home to another existing
nursing home located within a county that is contiguous to the county from
which the beds are to be relocated may be submitted at any time and must meet
the requirements set forth in paragraph (B) of rule
3701-12-23 of the Administrative
Code.

(C)
Applications for certificate of need that propose the
conversion of infirmary beds to long-term care beds may be submitted at any
time and must meet the requirements set forth in paragraph (C) of rule
3701-12-23 of the Adminsitrative
Code.

(D)
Each applicant shall submit an original of the
application form and attachments in a manner prescribed by the director and
shall include, but not be limited to, the following:

(4)
Identification of a specific site for the project
designated by a street address or, if there is no street address, a plot or
parcel number;

(5)
The bed tracking numbers of each long-term care bed
that is subject to the certificate of need; and

(6)
A designated
authorized representative who shall sign an affidavit that, to the best of his
or her knowledge, the information in the application and any accompanying
material is true and accurate.

(E)
The application
shall be accompanied by a nonrefundable fee in the form of a check or a postal
money order, payable to the treasurer state of Ohio, in the following
amount:

(1)
For
a project not involving a capital expenditure, five thousand dollars;
or

(2)
For a project involving a capital expenditure, the
greater of five thousand dollars or one point five per cent of the capital
expenditure proposed, with a maximum fee of twenty thousand
dollars.

(F)
Upon acceptance of an application and the appropriate
fee, the director shall review the application for completeness of information.
The director shall consider an application complete when the applicant:

(1)
Furnishes the
information specified in paragraph (D) of this rule;

(3)
If required to,
adequately and completely responds to the director's requests for additional
information.

(G)
If an application is not accepted, the director shall
not review it and shall return the fee specified in paragraph (E) of this rule,
minus a one hundred dollar application processing fee.

(H)
To determine
completeness, the director may request additional information from the
applicant but shall not request any information that is not necessary to review
the application in relation to the criteria established by this chapter, as the
chapter is in effect at the time the request is made.

(1)
The director may
make two requests for the additional information needed to complete an
application under this paragraph.

(2)
The applicant
shall have ninety days to respond to a request for additional
information.

(3)
The director shall deem an application incomplete if
the applicant does not timely respond to the director's request for additional
information or if the director does not receive the information necessary to
complete the application within the appropriate time frame specified in this
rule.

(4)
When responding to requests for additional
information, applicants shall submit responses in the manner prescribed by the
director.

(I)
If a revision to an application is filed in accordance
with rule
3701-12-12 of the Adminsitrative
Code, the director may make an additional request for information even if two
requests have already been made. The applicant shall have ninety days to
respond to a request for additional information after the filing of a revised
application.

(J)
The director shall determine completeness of a
certificate of need application:

(1)
No later than thirty days after the director receives
the application and the appropriate fee or thirty days after the director
receives additional information submitted in response to the first request, the
director shall mail to the applicant by certified mail notice of completeness
or a second request for additional information.

(2)
No later than
thirty days after the director receives additional information submitted in
response to the second request, the director shall mail to the applicant by
certified mail notice of completeness or shall deem the application
incomplete.

(3)
If a third request for additional information is made
after a revised application is filed, no later than thirty days after the
director receives additional information submitted in response to the third
request, the director shall mail to the applicant by certified mail notice of
completeness or shall deem the application incomplete.

(K)
Except as necessary to comply with a subpoena issued under division (F) of
Section 3702.52 of the Revised Code,
after a notice of completeness has been received, no person shall make
revisions to information that was submitted to the director before the director
mailed the notice of completeness or knowingly discuss in person, by telephone,
or electronically the merits of the application with the director. A person may
supplement an application after a notice of completeness has been received by
submitting clarifying information to the director.

(L)
The director may
deny an application for any false statement knowingly made in the application
or in supplemental information submitted pursuant to this rule.

(M)
The director
shall include the information specified in paragraphs (M)(1) to (M)(3) of this
rule with the notice of completeness. The applicant shall provide notice of all
the information set forth in this rule, by notice in a newspaper of general
circulation published at least weekly in either the municipal corporation,
county, or other political subdivision where the reviewable activity (project)
will take place. The applicant shall provide the notice within seven business
days after the notice of completeness specified in paragraph (J) of this rule
is received. If the newspaper notice is not provided within the time frame
specified by this paragraph, the applicant shall document in writing why the
time frame was not met. The applicant shall provide a copy of the published
notice and, if applicable, written documentation of why the time frame for the
newspaper notice was not met to the director by written or electronic mail
within ten business days after the day the notice is first published. The
notice shall include the following information:

(3)
The deadline for the submission of written comments to
an application, as set forth in rule
3701-12-11 of the Administrative
Code;

(4)
A general description of the nature of the project,
which shall include its cost, the facilities involved in the project;
and

(5)
The street address or plot or parcel number that the
project will take place.

(N)
The director may
deny an application if the applicant fails to provide timely newspaper notice
as required in paragraph (M) of this rule, or the director determines that the
applicant failed to document in writing that timely notice was not provided for
reasons beyond the applicant's control.

(O)
If the director
deems an application incomplete as authorized by this rule, the director shall
notify the applicant by certified mail, not process the application, and keep
the fee specified in paragraph (E) this rule. The director's act of deeming an
application incomplete and any of the other actions specified in this paragraph
shall not be subject to appeal.

(P)
The director
shall review applications for certificates of need which have been declared
complete to determine whether a certificate should be granted.

(Q)
As provided in
divisions (C)(5) of section
3702.52 of the Revised Code, the
director or the applicant may extend the review period once, for no longer than
thirty days, by written notice within thirty days after the mailing of the
notice of completeness.

(R)
Except as provided in division (C)(5) of section
3702.52 of the Revised Code, the
director shall grant or deny all completed applications for certificate of need
no later than sixty days after the date of mailing of notice of completeness
under paragraph (J) of this rule.

(S)
The director may
grant a certificate of need for all or part of a project that is the subject of
the application and may grant the certificate with conditions that must be met
by the holder of the certificate.

(T)
If the director
does not grant or deny the certificate of need on or before the applicable
deadline specified in paragraph (R) of this rule, the certificate shall be
considered granted.

(U)
The director shall mail notice of the decision on an
application for a certificate of need to the applicant by electronic and
certified mail and to other persons by electronic or ordinary mail upon
request. The notice shall include a statement of the reasons for the decision,
citations of the applicable provisions of the Revised Code and Administrative
Code, and a description of the right to appeal the decision, in accordance with
sections 3702.60 and
119.07 of the Revised
Code.

(V)
The applicant or an affected person may appeal to the
director a decision to grant or deny a certificate of need application in
accordance with Chapter 119. of the Revised Code. The director shall conduct an
adjudication hearing in accordance with Chapter 119. of the Revised Code.

(1)
The appellant
also shall file notice with the director not later than thirty days after the
date the director mailed the order; and

(2)
The appellant or
other affected person that appeals the director's decision to grant or deny a
certificate of need application must prove by a preponderance of the evidence
that the director's decision was not in accordance with sections
3702.52 to
3702.62 of the Revised Code or
Chapter 3701-12 of the Administrative Code.

(W)
The applicant or
an affected person that was party to and participated in an adjudication
hearing as authorized by division (B) of section
3702.60 of the Revised Code and
paragraph (V) of this rule may appeal to the tenth district court of appeals
the decision issued by the director following the adjudication hearing. Each
person who appeals to the tenth district court of appeals shall file with the
court, not later than thirty days after the director's adjudication order is
mailed; a notice of appeal that designates the order the person is appealing.
The appellant also shall file notice with the director not later than thirty
days after the date the director mailed the order.

(A)
Applications for
certificate of need filed under section
3702.593 of the Revised Code to
conduct a reviewable activity as defined by rule
3701-12-05 of the Administrative
Code shall be subject to this rule.

(B)
At the times
specified in this rule, the director shall accept certificate of need
applications for any of the following purposes if the proposed increase in beds
is attributable solely to relocation of existing beds from an existing
long-term care facility in a county with excess beds to a long-term care
facility in a county in which there are fewer long-term care beds than the
county's bed need:

(1)
Approval of beds in a new long-term care facility or
an increase of beds in an existing long-term care facility if the beds are
proposed to be licensed as nursing home beds under Chapter 3721. of the Revised
Code;

(2)
Approval of beds in a new county home or new county
nursing home, or an increase of beds in an existing county home or existing
county nursing home if the beds are proposed to be certified as skilled nursing
facility beds under the medicare program, Title XVIII of the Social Security
Act, 49 Stat. 286 (1965), 42
U.S.C. 1395 , as amended, or nursing facility
beds under the medicaid program, Title XIX of the Social Security Act, 49 Stat.
286 (1965), 42 U.S.C.
1396 , as amended; or

(3)
An increase of
hospital beds registered pursuant to section
3701.07 of the Revised Code as
long-term care beds.

(C)
The review
period for each review process shall be every four years beginning July 1,
2012.

(a)
The first phase
of a four year review process shall begin July first of the first
year.

(b)
The second phase of a four year review process shall
begin July first of the third year.

(2)
Applications for
certificates of need made under the first review process that propose an
increase in beds that is attributable solely to relocation of existing beds
from an existing long-term care facility in a county with excess beds to a
long-term care facility in a county in which there are fewer long-term care
beds than the county's bed need, as published on the department of health's web
site, shall be submitted from July 1, 2012 through July 31, 2012 and every four
years thereafter.

(3)
If a remaining bed need is published on the department
of health's web site for a county, applications for certificates of need made
under the second phase of a four year comparative review process that propose
the re-distribution of beds made available pursuant to paragraph (O)(3) of rule
3701-12-23 of the Administrative
Code, shall be submitted from July 1, 2014 through July 31, 2014 and every four
years thereafter.

(D)
Applications
made under section 3702.593 of the Revised Code are
subject to comparative review if two or more applications are submitted during
the same review period and any of the following apply:

(1)
The applications
propose to relocate beds from the same county and the number of beds for which
certificates of need are being requested for relocation totals more than the
number of beds available in the county from which the beds are to be
relocated;

(2)
The applications propose to relocate beds to the same
county and the number of beds for which certificates of need are being
requested for relocation totals more than the number of beds needed in the
county to which the beds are to be relocated;

(3)
The applications
propose to relocate beds from the same service area and the number of beds left
in the service area from which the beds are being relocated would be less than
the state bed need rate determined under in paragraph (D) of rule
3701-12-23 of the Administrative
Code.

(E)
To be considered timely, the director must receive an
application made under a review process from July first through July
thirty-first in the first year and third years of a four year comparative
process that includes the information that complies with paragraph (F) of this
rule and is accompanied by the appropriate fee prescribed in paragraph (G) of
this rule. If an application made under a comparative review process is not
timely received, the director shall not review it and shall return the fee
specified in paragraph (G) of this rule, minus a one hundred dollar application
processing fee.

(F)
Each applicant shall submit an original of the
application form and attachments in a manner prescribed by the director and
shall include, but not be limited to, the following:

(4)
Identification of a specific site for the project
designated by a street address or, if there is no street address, a plot or
parcel number;

(5)
The bed tracking numbers of each long-term care bed
that is subject to the certificate of need; and

(6)
A designated
authorized representative who shall sign an affidavit that, to the best of his
or her knowledge, the information in the application and any accompanying
material is true and accurate.

(G)
The application
shall be accompanied by a nonrefundable fee in the form of a check or a postal
money order, payable to the treasurer state of Ohio, in the following
amount:

(1)
For
a project not involving a capital expenditure, five thousand dollars;
or

(2)
For a project involving a capital expenditure, the
greater of five thousand dollars or one point five per cent of the capital
expenditure proposed, with a maximum fee of twenty thousand
dollars.

(H)
Upon acceptance of an application and the appropriate
fee, the director shall review the application for completeness of information.
The director shall consider an application complete when the applicant:

(1)
Furnishes the
information specified in paragraph (F) of this rule;

(3)
If required to,
adequately and completely responds to the director's requests for additional
information.

(I)
To determine completeness, the director may request
additional information from the applicant but shall not request any information
that is not necessary to review the application in relation to the criteria
established by this chapter, as the chapter is in effect at the time the
request is made.

(1)
The director may make two requests for the additional
information needed to complete an application under this
paragraph.

(2)
The director shall deem an application incomplete if
the applicant does not timely respond to the director's request for additional
information or if the director does not receive the information necessary to
complete the application within the appropriate time frame specified in this
rule.

(3)
When responding to requests for additional
information, applicants shall submit responses in the manner prescribed by the
director.

(4)
For applications under comparative review, the
following deadlines apply:

(a)
No later than August thirty-first of the same year in
which the application is received, the director shall mail to the applicant by
certified mail notice that additional information is not necessary or a first
request for additional information.

(b)
No later than
October thirty-first of the same year in which the application is received, the
applicant shall respond to the first request for additional
information.

(c)
If a first request for additional information is
mailed, no later than November thirtieth of the same year in which the
application is received, the director shall mail to the applicant by certified
mail notice that additional information is not necessary, a second request for
additional information, or deem the application incomplete.

(d)
No later than
January thirty-first of the year following the year in which the application is
received, the applicant shall respond to the second request for additional
information.

(e)
No later than the last day of February of the year
following the year in which the application is received, the director shall
mail to the applicant by certified mail, notice of completeness or shall deem
the application incomplete.

If the dates specified in this
paragraph are a weekend or a day when state offices are closed, the deadline
shall be moved to the next business day.

(J)
The
director shall deem an application incomplete if the applicant does not timely
respond to the director's request for additional information or if the director
does not receive the information necessary to complete the application within
the appropriate time frame specified in this rule.

(K)
Except as
necessary to comply with a subpoena issued under division (F) of Section
3702.52 of the Revised Code,
after a notice of completeness has been received, no person shall make
revisions to information that was submitted to the director before the director
mailed the notice of completeness or knowingly discuss in person, by telephone,
or electronically the merits of the application with the director. A person may
supplement an application after a notice of completeness has been received by
submitting clarifying information to the director.

(L)
The director may
deny an application for any false statement knowingly made in the application
or in supplemental information submitted pursuant to this rule.

(M)
The director
shall include the information specified in paragraphs (M)(1) to (M)(3) of this
rule with the notice of completeness. The applicant shall provide notice of all
the information set forth in this rule, by notice in a newspaper of general
circulation published at least weekly in the either the municipal corporation,
county, or other political subdivision where the reviewable activity (project)
will take place. The applicant shall provide the notice within seven business
days after the notice of completeness specified in paragraph (I) of this rule
is received. If the newspaper notice is not provided within the time frame
specified by this paragraph, the applicant shall document in writing why the
time frame was not met. The applicant shall provide a copy of the published
notice and, if applicable, written documentation of why the time frame for the
newspaper notice was not met to the director by electronic or written mail
within ten business days after the day the notice is first published. The
notice shall include the following information:

(3)
The deadline for the submission of written comments to
an application, as set forth in rule
3701-12-11 of the Administrative
Code;

(4)
A general description of the nature of the project,
which shall include its cost, the facilities involved in the project;
and

(5)
The street address or plot or parcel number that the
project will take place.

(N)
The director may
deny an application if the applicant fails to provide timely newspaper notice
as required in paragraph (M) of this rule, or the director determines that the
applicant failed to document in writing that timely notice was not provided for
reasons beyond the applicant's control.

(O)
If the director
deems an application incomplete as authorized by this rule, the director shall
notify the applicant by certified mail, not process the application, and keep
the fee specified in paragraph (G) this rule. The director's act of deeming an
application incomplete and any of the other actions specified in this paragraph
shall not be subject to appeal.

(P)
The director
shall review applications for certificates of need which have been declared
complete to determine whether a certificate should be granted.

(Q)
The director may
extend the review period once, for no longer than thirty days, by written
notice within thirty days after the mailing of the final notice of completeness
mailed under paragraph (I) of this rule. An extension by the director shall
apply to all applications in a comparative review process. No applicant in a
comparative review process may extend the review period.

(R)
Except as
provided in division (C)(5) of section
3702.52 of the Revised Code, the
director shall grant or deny all completed applications for certificate of
need:

(1)
No
later than sixty days after the date of mailing of notice of completeness under
paragraph (I) of rule this rule; or

(2)
No later than
April thirtieth, or the next business day if April thirtieth is a weekend, of
the year following the year in which the application is received for
applications under a comparative review process and a notice of completeness
was mailed under paragraph (I) of rule this rule.

(S)
The director may
grant a certificate of need for all or part of a project that is the subject of
the application and may grant the certificate with conditions that must be met
by the holder of the certificate.

(T)
If the director
does not grant or deny the certificate of need on or before the applicable
deadline specified in paragraph (R) of this rule, the certificate shall be
considered granted.

(U)
The director shall mail notice of the decision on an
application for a certificate of need to the applicant by electronic and
certified mail and to other persons by electronic or ordinary mail upon
request. The notice shall include a statement of the reasons for the decision,
citations of the applicable provisions of the Revised Code and Administrative
Code, and a description of the right to appeal the decision, in accordance with
sections 3702.60 and
119.07 of the Revised
Code.

(V)
The applicant or an affected person may appeal to the
director a decision to grant or deny a certificate of need application to the
director in accordance with Chapter 119. of the Revised Code. The director
shall conduct an adjudication hearing in accordance with Chapter 119. of the
Revised Code.

(1)
The appellant also shall file notice with the director
not later than thirty days after the date the director mailed the order;
and

(2)
The appellant or other affected person that appeals
the director's decision to grant or deny a certificate of need application must
prove by a preponderance of the evidence that the director's decision was not
in accordance with sections
3702.52 to
3702.62 of the Revised Code or
Chapter 3701-12 of the Administrative Code.

(W)
The applicant or
an affected person that was party to and participated in an adjudication
hearing as authorized by division (B) of section
3702.60 of the Revised Code and
paragraph (V) of this rule may appeal to the tenth district court of appeals
the decision issued by the director following the adjudication hearing. Each
person who appeals to the tenth district court of appeals shall file with the
court, not later than thirty days after the director's adjudication order is
mailed; a notice of appeal that designates the order the person is appealing.
The appellant also shall file notice with the director not later than thirty
days after the date the director mailed the order.

(A)
The director of
health shall accept an application for a replacement certificate of need when
the application is submitted following approval and within five years after
implementation of the reviewable activity for which the certificate of need was
granted, for:

(2)
Any other failure to carry out a reviewable activity
in substantial accordance with the approved application for which the
certificate of need concerning long-term care beds was granted.

(B)
To
replace an approved certificate of need all of the following conditions must be
met:

(1)
The
applicant for the replacement certificate of need must be the same as the
applicant for the approved certificate of need or an affiliated or related
person as defined in rule
3701-12-01 of the Administrative
Code;

(2)
The source of any long-term care beds to be relocated
must be the same as in the approved certificate of need; and

(3)
The application
for the approved certificate of need must not have been subject to comparative
review under section 3702.593 of the Revised
Code.

(C)
Applications for a replacement certificate of need
filed pursuant to section
3702.526 shall be accompanied by
the following:

(1)
Copies of the forms and attachments submitted for
review as part of the original certificate of need application;
and

(2)
A nonrefundable fee equal to the application fee paid
for the approved certificate of need in the form of a check or money order made
payable to the "treasurer, state of Ohio".

(D)
The director
shall not accept an application for a replacement certificate of need that
proposes to increase the number of long-term care beds to be relocated
specified in the application for the approved certificate of
need.

(E)
For the purpose of determining whether long-term care
beds are from an existing long-term care facility, the director shall consider
the date of filing of the application for a replacement certificate to be the
same date of filing of the original application for the approved certificate of
need.

(F)
Any long-term care beds that were approved in the
approved certificate of need shall remain approved in the application for a
replacement certificate of need.

(G)
Upon approval of
an application for a replacement certificate of need, the original certificate
of need will be automatically voided.

Any affected person may submit written
comments regarding an application for a certificate of need. Such comments must
be received by the thirtieth day after the mailing of the notice of
completeness or, in the case of applications subject to comparative review, by
the thirtieth day after the mailing of the last notice of completeness. The
director shall consider all written comments received by the established
deadline.

(A)
An applicant who
has an application for a certificate of need pending with the director may
revise the application to change the site of the proposed project unless either
of the following applies:

(1)
The director has mailed the applicant a notice of
completeness under section
3702.52 of the Revised Code;
or

(2)
The application is subject to comparative review under
section 3702.593 of the Revised
Code.

(B)
The only revision that may be made in the revised
application is the site of the proposed project. The revised site of the
proposed project must be located in the same county as the site of the proposed
project specified in the original application. The director may not accept a
revised application if it includes revisions other than the site of the
proposed project or if the revised site is located in a different county than
the county in which the site specified in the original application is
located.

(C)
Minor changes in the project are not considered to be
revisions of the application.

(D)
A revised
application shall be accompanied by an additional, non-refundable fee equal to
twenty-five per cent of the fee charged for the initial application. The
additional fee shall be deposited into the certificate of need fund created
under section 3702.52 of the Revised
Code.

(A)
For the
purposes of this rule, "holder" means the applicant to whom a certificate of
need was granted. In addition to compliance with validity requirements
established by any other rule of this chapter, to maintain the validity of a
certificate of need, the holder shall:

(1)
Obligate the capital expenditure, within the meaning of paragraph (A)(1)(a) of
this rule, within twenty-four months after the date of mailing of the notice
that the certificate was granted or, if the grant or denial of the certificate
is appealed under section
3702.60 of the Revised Code,
within twenty-four months after the issuance of an order granting the
certificate, which order is not subject to further appeal.

(i)
For a project
involving construction, the placement of any structural foundation element that
becomes an integral part of the structure. A structural foundation element
includes, but is not limited to, footings, piers, grade beams and
infrastructure items such as pilings and caissons. The acts of surveying,
staking, soil testing, demolition of existing structures, delivery of
materials, establishment or connection of utility services, elimination or
removal of a safety or sanitary hazard from the site and site preparation,
including site grading, site filling or clearing, are not considered
commencement of construction.

(ii)
For projects
involving exclusively renovations to an existing structure, the modification or
removal of an integral part of the structure or portion thereof. Such
modification or removal includes, but is not limited to, the modification or
removal of walls and ceilings, large surface replastering, major plumbing
projects, and window replacement. Minor repair and maintenance activities that
minimally disrupt building components, such as minor electrical or plumbing
activities, are not considered commencement of construction.

(i)
For a project that primarily involves construction and
is to be financed through external borrowing of funds, to secure financial
commitment for the stated purpose of developing the project and commencing
construction that continues uninterrupted except for interruptions or delays
that are unavoidable due to reason's beyond the person's control, including
labor strikes, natural disasters, material shortages, or comparable
events.

(ii)
For a project that primarily involves construction and
is to be financed internally, to receive formal approval from the holder's
board of directors or trustees, or other governing authority to commit
specified funds for the implementation of the project and commence construction
that continues uninterrupted except for unavoidable interruptions or delay due
to reason's beyond the person's control, including labor strikes, natural
disasters, material shortages, or comparable events

(iii)
For a project
that involves no capital expenditure or only minor renovations to existing
structures, to provide the long-term care service by the means specified in the
approved application for the certificate.

(iv)
For a project
that primarily involves leasing a building or space that requires only minor
renovations to the existing space, to execute a lease and provide the long-term
care service by the means specified in the approved application for the
certificate.

(v)
For a project that primarily involves leasing a
building or space that has not been constructed or requires substantial
renovations to existing space, to commence construction for the purpose of
implementing the reviewable activity that continues uninterrupted except for
interruptions or delays that are unavoidable due to reasons beyond the person's
control, including labor strikes, natural disasters, material shortages, or
comparable events.

(c)
For the purpose
of this rule, "provide the long-term care service" means, in the case of a
project that affects the number of long-term care beds at an existing long-term
care facility, to obtain a license or certification specifying the appropriate
bed capacity.

(d)
The twenty-four
month period specified in paragraph (A)(1) of this rule shall not be extended
by any means, including the granting of a subsequent or replacement certificate
of need.

(2)
After
obligating, maintain reasonable progress towards completion of the project.
Reasonable progress includes, but is not limited to:

(a)
When the holder maintains uninterrupted
progress except for delays that are unavoidable due to reasons beyond the
holder's control; or

(b)
When the
holder provides reasonable assurance that it will provide the
long-term
care service specified in
the approved application for the certificate by the projected completion date
approved by the director.

(3)
Submit all documents required by
paragraph (B) of this rule for monitoring implementation of the reviewable
activity in a timely manner.

(4)
Not transfer the certificate, within the meaning of section
3702.523 of the Revised
Code.

(5)
Conduct the reviewable
activity in substantial accordance with the approved application.

(6)
Conduct the reviewable activity at the
site specified in the approved application.

(7)
Not expend more than one hundred ten per
cent of the maximum capital expenditure stated in the certificate.

(B)
The director shall monitor
project implementation activities by holders of certificates of need. The
director's monitoring shall include but shall not be limited to review of
documentation submitted by holders. Each holder shall submit the following:

(1)
Progress reports, on forms provided by
the director, not less than six months after obligating the project and every
six months thereafter until the project is complete. The holder shall submit
progress reports more frequently if requested by the director;

(2)
An affidavit of substantial completion
of the project, on a form provided by the
director, upon project completion;

(3)
Architectural drawings or design
development drawings, when appropriate to the nature of the activity and when
requested by the director;

(4)
Written documentation of obligating the project, which shall be submitted to
the director not later than the earlier of thirty days after obligating or five
days after the twenty-four month period expires. Documentation of obligation
may include, but shall not be limited to, design drawings, a notarized
statement by the general contractor attesting to the date construction
commenced, a building permit issued by the building authority having
jurisdiction, approval to commit the specified funds for implementation of the
approved project from a board of directors or trustees or other governing
authority, construction contracts,
purchase or lease contracts for the building, zoning approvals, evidence of
site acquisition, or secured financial agreements,
licensure, certification, or registration of the long-term care
beds;

(5)
Monitoring reports,
on forms provided by the director, one year after implementing the project and
annually thereafter ending five years after implementation of the activity for
which the certificate was granted for certificates concerning long-term
beds;

(6)
Timely notification of
any delay and request for approval of any changes to the projected completion
date; and

(7)
Any other documents
relevant to project implementation, upon request by the director.

(C)
The director may issue and
enforce, in the manner provided in section
119.09 of the Revised Code,
subpoenas and subpoenas duces tecum to compel
a
person to testify and produce documents relevant to the director's
monitoring of the approved project. The director or the director's
representative may visit sites where the activities are or will be
conducted.

(D)
The director shall
send a notice to the holder of the certificate that states whether or not the
holder has obligated the approved project. The director shall send the notice
by certified mail to the holder not later than
fifteen days after the director receives the obligation documentation or
fifteen days after the twenty-four month period expires, whichever is later.

(E)
If a holder fails to obligate the approved project,
the certificate of need expires regardless of whether the director has sent
notice pursuant to paragraph (D) of this rule or not. No further action is
required by the director. Expiration of a certificate of need does not
constitute a withdrawal and the procedure provided in paragraph (F) of this
rule for a withdrawal does not apply. A determination by the director that a
certificate of need has expired is final and not appealable under Chapter 119.
of the Revised Code.

(F)
The director may withdraw a certificate of need
for failure to comply with the requirements for maintaining the validity of the
certificate established by this rule or any other rule of this chapter or
because the application or supplemental information contained material, false
or misleading statements or knowing omissions of material information. In
withdrawing a certificate, the director shall use the following procedures:

(1)
At least thirty days before withdrawing
the certificate, the director shall notify the holder of the proposed
withdrawal by certified mail. The notice shall include the reasons for the
proposed action and a statement that the holder may respond to the proposal in
writing within thirty days after the mailing of the notice of the proposed
withdrawal.

(2)
Before withdrawing
the certificate, the director shall consider any information timely filed by
the holder and may consider any other information that the director considers
appropriate.

(3)
The director shall
notify the holder of the withdrawal of the certificate or the decision not to
withdraw the certificate by certified mail within ninety days after the mailing
of the notice of the proposed withdrawal. The notice of withdrawal shall
specify the reasons for the withdrawal, citations of relevant provisions of the
Revised Code and the Administrative Code and a description of the right to
appeal the withdrawal, in accordance with Chapter 119. and section
3702.60 of the Revised
Code.

(A)
The director
shall monitor the implementation of an activity which the director has
determined to
not be a reviewable activity under
rule 3701-12-04 of the Administrative
Code, if
the director determines that the activity requires monitoring under paragraph
(B) of this rule. The director shall monitor the activity to determine whether
it is implemented in the manner described in the request for the ruling and
whether it still is not a reviewable activity.

(B)
The director may determine that an
activity requires monitoring under this rule at the time that
the activity is determined to not be a
reviewable activity or at any subsequent time. The director shall
commence monitoring when the director determines that one or more of the
factors specified in this paragraph are applicable. The director may consider
the following factors in determining which activities require monitoring under
this rule:

(1)
Whether the
determination
that the activity was not a reviewable activity
was based upon representations that certain services would or would not be
provided as a result of the activity;

(2)
Whether the determination
that the activity was not a reviewable activity
was based upon representations that the activity would be conducted through a
particular organizational structure or by a certain type of facility such as a
a
county home;

(3)
Whether the
determination
that the activity was not a reviewable activity
was based upon certain configurations, types, or uses of physical space or the
request lacked specificity concerning the configuration, type, or use of
physical space;

(4)
Whether the
activity involved exclusion of items listed in division
(B) of
section 3702.51 of the Revised Code from
a construction or renovation project that otherwise would have been
reviewable;

(5)
The director has
reason to believe that the activity is being implemented differently from the
representations made in the request for the reviewability ruling or in a manner
that may make the activity a reviewable activity;

(6)
Whether the activity is a reviewable activity if
any of the conditions specified under division (B) of section
3702.511 of the Revised
Code were not been met.

(C)
Upon determining that an activity
requires monitoring under this rule, the director shall provide written notice
of that determination to the person who filed the request for
reviewability determination. The notice shall specify the provisions of
paragraph (B) of this rule that form the basis for the determination that
monitoring is required. In the case of monitoring on the basis of paragraph
(B)(5) of this rule, the notice shall specify the reason why the director
believes that paragraph applies.

(D)
For purposes of conducting monitoring
under this rule, the director may request compliance with the provisions of
this paragraph that are relevant to the basis for monitoring a particular
activity, as specified in the notice provided under paragraph (C) of this rule.
Upon request by the director, a person who filed the
request for reviewability determination for an activity that the director
determines requires monitoring under this rule shall do all of the following,
as applicable, beginning no later than forty-five days after the director's
request:

(1)
Provide progress reports on the
implementation of the activity, at the times and containing the information
requested by the director;

(2)
In
the case of an activity monitored under paragraph (B)(4) of this rule, provide
accurate statements of costs involved in implementation or operation of the
activity and supporting documentation;

(3)
In the case of an activity monitored
under paragraph (B)(3) (B)(4), or (B)(5) of this rule, provide contracts,
drawings, descriptions, or other information relating to construction or
renovation work associated with the activity;

(4)
In the case of an activity monitored
under paragraph (B)(1) or (B)(2) of this rule, provide information about the
services to be furnished as a result of the activity, including the identity
and type of the providers of the services and data on the utilization of the
services;

(5)
In the case of an
activity monitored under paragraph (B)(2) of this rule, provide information
about the organizational relationships of persons involved in implementing and
operating the activity;

(6)
Allow
the director to have access to the site or sites at which the activity is
implemented or operated and to examine records pertinent to implementation or
operation of the activity, subject to applicable confidentiality laws. The
director shall examine only those portions of the site or those records that
are relevant to the basis for the determination that monitoring is required, as
specified in the notice provided under paragraph (C) of this rule;

(7)
Provide any other information that is
relevant to monitoring whether the activity is being conducted in a manner
consistent with the representations in the request for the ruling and that does
not render it reviewable; and

(8)
Provide documentation to verify compliance with the conditions specified under
division (B) of section 3702.511 of the Revised
Code, if the activity is monitored under paragraph (B)(7) of this
rule.

(E)
The director
shall monitor an activity under this rule only for the period of time necessary
to determine that the activity has been implemented in accordance with the
request for the reviewability ruling and in a manner that does not make it a
reviewable activity. For other activities, such as activities monitored under
paragraph (B)(1) of this rule, monitoring may be continuing.

(F)
Upon request by the director, the person
to who filed the request for reviewability
determination shall provide affidavits from appropriate individuals
attesting to the accuracy of any information provided under this rule.

(A)
The director shall apply each of the
criteria prescribed in this rule, as applicable, when reviewing an application
for a certificate of need, in addition to any criteria specific to the
application that are established by this chapter of the Administrative Code and
sections 3702.51 to
3702.62 of the Revised Code. An
applicant for a certificate of need shall provide sufficient information to
enable the director to perform a thorough review of the application in relation
to each relevant criterion established by this chapter of the Administrative
Code by completely responding to each applicable portion of the application
form and attachments prescribed by the director and by attaching the necessary
supporting documentation.

(B)
For
projects involving any construction,
renovation or remodeling, the director shall consider:

(1)
The costs, methods and type of
construction including energy conservation features, if applicable;

(2)
The current and projected zoning status
of the project site, if applicable; and

(3)
Space allocations and the configuration
of existing and proposed areas.

(C)
If applicable, the director shall consider the
relationship of the project to the long-range plan of the applicant and the
planning process that the applicant has employed.

(D)
The director shall consider the need that the
population served or proposed to be served has for the services to be provided
upon implementation of the project. In assessing the need for a project, the
director shall examine:

(1)
The current and
proposed primary and secondary service areas and their corresponding
population;

(2)
Travel times and
the accessibility of the project site and of the sites of similar services to
the proposed service area population;

(4)
Any special needs and circumstances of
the applicant or population proposed to be served by the proposed project,
including research activities, prevalence of a particular disease, unusual
demographic characteristics, cost-effective contractual affiliations, and other
special circumstances; and

(5)
Special needs related to any research activities, such as participation by the
applicant in research conducted by the United States food and drug
administration or clinical trials sponsored by the national institute of
health, that will be conducted as a result of implementation of the reviewable
activity.

(E)
The director shall
consider the impact of the project on all other providers of similar services
in the service area specified by the applicant including the impact on their
utilization, market share and financial status.

(F)
The director shall consider alternatives to the
project and the advantages, disadvantages and costs of each
alternative.

(G)
If the project
involves an existing long-term care facility, the director shall
consider the historical, current and projected utilization of the facility as a
whole and the utilization specific to the services affected by the
project.

(H)
The director shall
consider the effectiveness of the project in meeting the health-related needs
of medically underserved groups such as low-income individuals, individuals
with disabilities and minorities. If applicable, this consideration shall
include review of the applicant's historical experience in meeting the needs of
underserved groups.

(I)
The director shall consider the short-term and
long-term financial feasibility and the cost effectiveness of the project and
its financial impact upon the applicant, other providers, health care consumers
and the medicaid program established under Chapter 5111. of the Revised Code.
For the purpose of this paragraph, "related or
affiliated parties" means principal participants.

Among other relevant matters, the director shall
evaluate:

(1)
The availability of
financing for the project, including all pertinent terms of any borrowing, if
applicable;

(2)
The operating costs
specific to the project and the effect of these costs on the operating costs of
the facility as a whole based upon review of balance sheets, cash flow
statements and available audited financial statements;

(3)
The effect of the project on charges and
payment rates for the facility as a whole and specific to the project;
and

(4)
The costs and charges
associated with the project compared to the costs and charges associated with
similar services furnished or proposed to be furnished by other providers;
and

(5)
The historical performance
of the applicant and related or affiliated
parties in providing cost-effective long-term care services.

(J)
The director shall consider the impact of the
project on existing staffing levels, if applicable, and the availability of
personnel resources to meet the applicant's projected requirements.

(K)
If medical or allied health education is an
integral part of the project, the director shall examine the impact of the
project on the advancement of the educational endeavor.

(L)
The director shall consider the availability of
and the impact upon ancillary and support services that relate directly and
indirectly to the project.

(M)
The director shall consider the extent to which
the project, the facility as a whole and the applicant comply and will comply
with applicable standards for licensure, certification, accreditation and
similar approvals.

(N)
The director shall
consider the special needs and circumstances resulting from moral and ethical
values and the free exercise of religious rights of long-term care
facilities administered by religious organizations.

(O)
The director shall consider the special needs
and circumstances of
inner city and
rural communities.

(P)
The director shall consider the historical
performance of the applicant and related or
affiliated parties in complying with previously granted certificates of
need.

(A)
Except as
otherwise specifically provided in this rule or in another rule of this
chapter, the director shall apply all of the criteria prescribed by this rule
when reviewing an application for a certificate of need that relates to an
existing or proposed long-term care facility, including an application for:

(1)
The establishment, development, or
construction of a new long-term care facility;

(3)
The renovation
of or addition to a long-term care facility that
involves a capital expenditure of two million dollars or more, not including
expenditures for equipment, staffing, or operational costs;

(b)
A
relocation of beds from one physical facility or site to another, excluding the
relocation of beds within a long-term care facility or among buildings of a
long-term care facility at the same site.

(5)
Any change in the
bed capacity, or site, or
any other failure to conduct a reviewable
activity in substantial
accordance with the approved application for which a certificate of need
concerning long-term care beds was granted, if the change is made within five
years after the implementation of the reviewable activity for which the
certificate was granted; or

(6)
The
expenditure of more than one hundred ten per cent of the maximum expenditure
specified in a certificate of need concerning long-term care beds.

(B)
Applications for certificate of need that propose an increase in beds that is
attributable to a relocation of existing beds from an existing nursing home to
another existing nursing home located within a county that is contiguous to the
county from which the beds are to be relocated that meet all of the following
conditions may be submitted at any time:

(1)
Not more than a
total of thirty nursing home beds are proposed for relocation to the same
existing nursing home regardless of the number of applications filed. Once the
cumulative total of beds relocated under section
3702.594 of the Revised Code to
a nursing home reaches thirty, no further applications under this paragraph
will be accepted until the a period of five years has elapsed since the
implementation of the most recent reviewable activity implemented under section
3702.594 of the Revised Code has
expired;

(2)
After the proposed relocation, there will be existing
nursing home beds remaining in the county from which the beds are relocated;
and

(3)
The beds are proposed to be licensed as nursing home
beds under Chapter 3721.of the Revised code.

(C)
The director shall utilize the following formula
to determine the number of long-term care beds needed for each county for the
review process prescribed in
section 3702.593 of the Revised Code:

Total statewide inpatient days means: The sum of inpatient days
for all facilities identified by facility type as "Nursing Facility" that filed
a medicaid cost report for the calendar year that is two years prior to the
year in which a bed need is published for the first review process and the first phase of a
four year review
process.

Total bed days available of these facilities means: The sum of
the long-term care bed capacity for each nursing facility that is multiplied by
the number of calendar days in the reporting year. The
reporting year for each facility will include only the number of calendar days
that the facility was authorized to provide care and was providing
services.

Total statewide long-term care bed supply means: Utilize the
most recent long-term care bed supply per county that is determined by the
director. The long-term care bed supply per county shall include
all of the

(b)
Beds certified as nursing facility or skilled nursing
facility under Title XVIII or XIX of the Social Security Act. 49 Stat. 620
(1935), 42 U.S.C.
301 , as amended;

(c)
Beds in any
portion of a hospital that are properly registered under section
3701.07 of the Revised Code as
skilled nursing beds, long-term care beds, or special skilled beds, excepting
beds recategorized pursuant to section
3702.521 of the Revised
Code;

(d)
Beds in a county home or county nursing home as
defined in section 5155.31 of the Revised Code that
were timely and properly reported as long-term care beds pursuant to section
5155.38 of the Revised Code;
and

(e)
Beds held as "approved" beds under an approved
certificate of need.

Projected statewide population aged sixty-five and over means:
Based on the Ohio department of development's projections for the year that is
at least five years after the year in which a bed need is published for the
first review process and for
the first phase of a four year
review process.

(Projected county population aged sixty-five and older ÷
one thousand) x state bed need rate = number of beds needed for the
county

Number of beds needed for the county - bed supply for the
county = bed need or excess for the county

For purposes of this rule:

Projected county population aged sixty-five and older means:
The projections for each county that were used in determining the projected
statewide population aged sixty-five and over.

Bed supply for the county means: The bed supply for each county
that was used in determining the total statewide long-term care bed
supply.

(D)
If the formula projects a bed need for a county
with an average annual occupancy rate of less than eighty-five per cent, the
director shall find that there is no bed need.

(E)
If the formula projects a bed excess for a
county with an average annual occupancy rate of greater than ninety per cent,
the director may approve an increase in beds equal to up to ten per cent of the
long-term care bed supply for that county.

(F)
Except as provided in paragraph
(E) of
this rule, if the formula projects a bed excess of one hundred beds or less for
a county, the director shall find that there is no excess or, if the formula
projects a bed excess of more than one hundred beds, the director shall find
that there is a bed excess for the projected number of beds less one
hundred.

(G)
Beginning April 1, 2012, and every four years
thereafter, the director shall publish on the department of health's website
the following:

(1)
Each county with a bed need
and the number of beds needed for the county: and

(2)
Each county with a bed excess and the
number of excess beds for the county.

(H)
By April 1, 2014 and every four years
thereafter, the director may publish on the department of health's website,
each county with a remaining bed need and the number of beds still needed for
the county.

The director's decision to publish a remaining bed need for a
county shall be based on the number of surrendered beds statewide, pursuant to
paragraph (N)(3) of this rule, the remaining county bed need,
and the county's long-term care bed occupancy rate.

Remaining bed need calculation:

Published bed need from the first phase of the four year
review process - the number of
beds approved for a county from the first phase of the four year
review process - the number of
beds approved for a county from a contiguous county after calculating the bed
need for the first phase of the four year review process to calculating the
remaining bed need = remaining bed need for the county.

(I)
The director shall not grant a certificate of
need under this rule unless the application contains documentation that the project will comply with the
following requirements as applicable:

(1)
For homes
required to be licensed under Chapter 3721. of the Revised Code, the
requirements for licensure under Chapter 3721. of the Revised Code and Chapter
3701-17 of the Administrative Code;

(2)
For hospital
long-term care beds, beds in county homes as defined in section
5155.31 of the Revised Code that
are long-term care facilities as defined in this chapter, and long-term care
beds in a long-term care facility, the requirements for certification as a
nursing facility or skilled nursing facility under Title XVIII or XIX of the
Social Security Act. 49 Stat. 620 (1935),
42 U.S.C.
301 , as amended.

(J)
The director shall not grant certificates of
need for establishment, construction, or development of new long-term care
facilities, including replacement facilities, with a long-term care bed
capacity of less than fifty beds. The director may waive the criterion
prescribed by this paragraph if the applicant demonstrates that the proposed
facility of less than fifty beds can be operated in a cost-effective manner,
and:

(1)
The proposed facility's size is
essential to serve a special health care need that otherwise will not be
served, or will serve a special health care need in accordance with current,
evidence-based standards of care;

(2)
The proposed facility is the only
feasible alternative for cost-effective correction of physical plant
deficiencies; or

(3)
The proposed
facility is part of a continuing care retirement or life care community and the
application demonstrates the following:

(a)
The applicant will be contractually obligated to provide long-term care to
current residents of the continuing care retirement or life care community;
and

(b)
The continuing care
retirement or life care community currently provides and will continue to
provide preference in admission to contractual residents of the
community.

(K)
The director shall not grant certificates of
need for new or replacement long-term care facilities of more than one hundred
fifty beds or for bed additions to existing long-term care facilities if the
resulting facility will have more than one hundred fifty beds, except for a
facility to replace a single, existing long-term care facility. The director
may waive the criterion prescribed by this paragraph if the applicant
demonstrates that a facility of more than one hundred fifty beds is essential
to serve a special health care need that otherwise will not be served and that
the facility can be operated in an efficient manner without sacrificing quality
care for its patients.

(L)
In reviewing a certificate of need application
under this rule, the director may examine and consider, in accordance with this
paragraph, any state or federal records relating to the licensure under Chapter
3721. of the Revised Code or, if applicable, the participation as a provider
under Title XVIII or XIX of the Social Security Act, 49 Stat. 620 (1935),
42 U.S.C.
301 , as amended, of any long-term care
facilities owned, operated, or managed by the applicant, the owner or the
operator of the long-term care facility to which the application relates, or by
any principal participant, as defined in paragraph (V) of rule
3701-12-01 of the Administrative
Code, in an entity which is or will be the applicant, owner, or operator. The
application shall contain a list of all relevant long-term care facilities with
dates of ownership, operation, or management. The director also may consider
records pertaining to ownership or operation by these persons of long-term care
facilities in other states.

(a)
The
existing long-term care facility in which the beds are being
placed has one or more waivers for life safety code deficiencies, one or more
state fire code violations, or one or more state building code violations, and
the project identified in the application does not propose to correct all life
safety code deficiencies for which a waiver has been granted, all state fire
code violations, and all state building code violations at the existing
long-termcare facility in which the beds are being
placed; or

(b)
During the sixty
month period preceding the filing of the application, a notice of proposed
license revocation was issued under section
3721.03 of the Revised Code for
the existing long-term care facility in which the beds are placed
or a nursing home owned or operated by the applicant or a principal
participant; or

(c)
During the
period that precedes the filing of the application and is encompassed by the
three most recent surveys of the existing long-term care facility in which the
beds are being placed any of the following occurred:

(i)
The long-term
care facility was cited on three or more separate occasions for final,
nonappealable actual harm, but not immediate jeopardy deficiencies;

(ii)
The long-term
care facility was cited on two or more separate occasions for final,
nonappealable immediate jeopardy deficiencies;

(iii)
The long-term
care facility was cited on two separate occasions for final,
nonappealable actual harm, but not immediate jeopardy deficiencies and on one
occasion for a final nonappealable immediate jeopardy deficiency; or

(iv)
More than two nursing homes owned or
operated in this state by the applicant or a principal participant or, if the
applicant or a principal participant owns or operates more than twenty nursing
homes in this state, more than ten per cent of those nursing homes, were each
cited during the period that precedes the filing of the application for the
certificate of need and is encompassed by the three most recent standard
surveys of the nursing homes that were so cited in any of the following
manners:

(a)
On three or more separate
occasions for final, nonappealable actual harm, but not immediate jeopardy
deficiencies;

(b)
On two or more
separate occasions for final, nonappealable immediate jeopardy deficiencies;
or

(c)
on two separate occasions
for final, nonappealable actual harm, but not immediate jeopardy deficiencies
and on one occasion for a final, nonappealable immediate jeopardy
deficiency.

(2)
In applying the provisions of paragraphs
(L)(1)(a)
to (L)(1)(c) of this rule, the director shall not
consider deficiencies or violations cited before the applicant or a principal
participant acquired or began to own or operate the long-term care
facility at which the deficiencies or violations were cited. The director may
disregard deficiencies and violations cited after the
long-term care facility was acquired or began to be
operated by the applicant or a principal participant if the deficiencies or
violations were attributable to circumstances that arose under the previous
owner or operator and the applicant or principal participant has implemented
measures to alleviate the circumstances. In the case of an application
proposing development of a new long-term care facility by relocation of beds,
the director shall not consider deficiencies or violations that were solely
attributable to the physical plant of the existing long-term care
facility from which the beds are being relocated.

(3)
The director also may deny the
certificate of need if the applicant, owner, operator, or any principal
participant has been the subject of a final determination of medicare or
medicaid fraud or abuse.

(M)
In determining which applications should receive
preference in a comparative review process, the director shall consider, in
conjunction with all other applicable criteria prescribed by this chapter, all
of the following as weighted priorities. Applications that meet all applicable
criteria for certificate of need approval and that receive the most points
under this paragraph will be given preference. When applications that meet all
applicable criteria for certificate of need approval and that are under a
comparative review process for the same county receive an equal number of
points under this paragraph, the director shall give preference to the
application that demonstrates the greatest need for the reviewable activity.
The director may approve all or part of a proposed
activity.

(1)
Whether the project, as
described in the application, is or will be part of a continuing care
retirement community (CCRC) that complies with paragraph (I)(3) of this rule
upon completion of the reviewable activity. This criterion is weighted with
four points for a CCRC with at least a four to one ratio of alternative beds to
long-term care beds, three points with at least a three to one ratio, two
points with at least a two to one ratio and one point with at least a one to
one ratio. No points will be given if the ratio is less than one to one.

(a)
The alternative beds shall be available
to the residents and potential residents of the long-term care
facility.

(b)
Appropriate
agreements shall exist between the long-term care facility and the alternative
facility for transfer of residents.

(c)
The applicant shall certify that the
capital expenditure for the proposed alternative facility will be obligated,
within the meaning of paragraph (A)(1)(a) of rule
3701-12-18 of the Administrative
Code, at the same time as the capital expenditure for the portion of the
project involving the long-term care facility.

(d)
The applicant shall certify that no
application will be filed by any person for a certificate of need for
conversion of the alternative beds to long-term care beds for at least two
years after the proposed alternative beds are occupied by residents.

(e)
The application shall contain a
certification that if for any reason the alternatives to inpatient long-term
care cannot be developed or provided, development of the portion of the project
involving the long-term care facility will be discontinued and the director
will be notified immediately.

(f)
The application shall contain documentation of how the long-term care facility
and the alternative beds proposed will be integrated into the existing and
projected community system for caring for elderly and individuals with
disabilities. This documentation shall include at least:

(i)
A thorough inventory of existing and
projected alternative beds to inpatient long-term care within the
county;

(ii)
A description of the
planning process leading to selection of the alternative beds proposed in the
application, including discussions with appropriate community groups such as
local aging agencies regarding the community's needs for alternative services;
and

(iii)
An analysis of the need
in the community for the proposed alternative beds, taking into account the
needs of the target population, the existing and projected alternative services
and beds in the community, the ability of the target population to assume the
cost for an alternative bed, and the expected effect of the alternative beds on
utilization of long-term care facilities. The application also shall contain a
demonstration of the economic viability of the proposed alternative
beds.

(2)
Whether the beds will serve a medically underserved population such as
low-income individuals, individuals with disabilities, or individuals who are
members of racial or ethnic minority groups.

(a)
If the project in which the beds will be
included will serve low-income individuals or individuals who are members of
racial or ethnic minority groups, this criterion is weighted with one point for
each medically underserved population to be served by the project that is
documented as being greater than or equal to twenty-five per cent of the
population of the defined service area.

(b)
If the project in which the beds will be
included will primarily serve individuals with special health care needs such
as traumatic or acquired brain injury, cerebral palsy, spinal cord injury or
disability, multiple sclerosis, acquired immune deficiency syndrome or other
similar conditions. This criterion is weighted three points.

(3)
Whether the project in which
the beds will be included will provide alternatives to institutional care, such
as adult day-care, home health care, respite or hospice care, mobile meals,
residential care, independent living, or congregate living services. This
criterion is weighted with two points.

(4)
Whether the long-term care
facility's owner or operator will participate in medicaid waiver programs for
alternatives to institutional care. This criterion is weighted with two
points.

(5)
Whether the project in
which the beds will be included will reduce alternatives to institutional care
by converting residential care beds or other alternative care beds to long-term
care beds. This criterion is weighted with negative two points.

(6)
Whether the long-term care facility in which the beds will be
placed has positive resident and family satisfaction surveys. This criterion is
weighted with one point.

(7)
Whether the long-term care facility in which the
beds will be placed has fewer than fifty long-term care beds. This criterion is
weighted with one point.

(8)
Whether the long-term care facility in which the beds will be
placed is located within the service area of a hospital and is or will be
designed to accept patients for rehabilitation after an in-patient hospital
stay. This criterion is weighted with two points.

(9)
Whether the long-term care
facility in which the beds will be placed is or proposes to become a nurse aide
training and testing site. This criterion is weighted with one point.

(10)
The rating, under the centers for
medicare and medicaid services' five star nursing home quality rating system,
of the long-term care facility in which the beds will be
placed. This criterion is weighted with one point for a four star rating and
two points for a five star rating at the time the application is declared
complete.

(N)
For applications
made under the first phase of a four year review process, the director shall:

(1)
Limit the number of beds approved for a
county to no more than the number of beds determined to be needed in the
receiving county;

(2)
Maintain,
after the relocation, the number of beds in the source facility's service area
at least equal to the state bed need rate. For purposes of this paragraph, a
facility's service area shall be either of the following:

(a)
The census tract in which the facility is
located, if the facility is located in an area designated by the United States
secretary of health and human services as a health professional shortage area
under the "Public Health Service Act," 88 Stat. 682 (1944),
42 U.S.C.
254(e) , as
amended;

(b)
The area that is
within a fifteen mile radius of the facility's location, if the facility is not
located in a health professional shortage area; and

(i)
For the purpose
of this rule, "fifteen mile radius" means the circular area extending fifteen
and zero tenths of a mile from the facility's main entrance;

(ii)
The fifteen
mile radius from the facility's main entrance shall be determined utilizing
global positioning system ("GPS") data.

and

(3)
Require the operator of the
long-term care facility from which beds were relocated
to reduce the number of beds operated in the facility by a number of beds equal
to at least ten per cent of the number of beds relocated
.
If these beds are in a home licensed under Chapter
3721. of the Revised Code, the long-term care facility shall have the beds
removed from the license. If the beds are in a facility that is certified as a
skilled nursing facility or nursing facility under Title XVIII or XIX of the
"Social Security Act," the facility shall surrender the certification of those
beds. If the beds are registered as skilled nursing beds or long-term care beds
under section 3701.07 of the Revised Code, the
long-term care facility shall surrender the registration of these beds.
In calculating the number of beds to be surrendered to the director, the number
of beds shall be rounded up to the nearest whole
number.

(a)
This reduction shall be completed not later than the
completion date of the project for which the beds were
relocated.

(b)
If the director has not received evidence from the
facility from which the beds are relocated, of the reduction of the required
number of beds on or before the date of the completion of the project, the
director shall remove those beds from the facility license, certification, or
registration.

(O)
For applications made under the second phase of
a four year comparative review process, the director shall:

(1)
Limit the number of beds approved for a
county to no more than the remaining bed need published for a county;

(2)
Limit the number of beds approved for
re-distribution to no more than the number of beds surrendered pursuant to
paragraph (N)(3) of this rule from the first phase of the four
year comparative review process at the time the last notice of completeness is
mailed under paragraph (J) of rule
3701-12-08 of the Administrative
Code for applications filed under this phase of the comparative review process;
and

(3)
Not re-distribute under a
future review process, any
surrendered beds that were not re-distributed during the second phase of a four
year review process.

(P)
When a certificate
of need application is approved during the first phase of a four year review
process, upon completion of the project for which the certificate of need was granted a number of
beds equal to the number of beds relocated shall cease to
be operated in the long-term care
facility from which the beds were relocated, except
that the beds may continue to be operated for not more than fifteen days to
allow relocation of residents to the facility to which the beds have been
relocated. Effective fifteen days
after the beds are relocated:

(1)
If the relocated beds are in a home licensed under
Chapter 3721. of the Revised Code, the facility's license will be automatically
reduced by the number of beds relocated;

(2)
If the beds are
in a facility that is certified as a skilled nursing facility or nursing
facility under Title XVII or XIX of the "Social Security Act", the certificated
shall be surrendered; or

(3)
If the beds are registered under section
3701.07 of the Revised Code as
skilled nursing beds or long-term care beds, the director shall remove those
beds from registration.

(Q)
For applications
that propose the inter-county relocation of beds or the re-distribution of
surrendered beds pursuant to paragraph (N) (3) of this
rule, the director shall consider existing community resources within the
service area that are serving elderly or individuals with disabilities.

(R)
For applications
that propose an increase in beds that is attributable to a replacement or
relocation of existing beds from an existing long-term
care facility within the same county, the director shall authorize no
additional beds beyond those being replaced or relocated.

(S)
If an application for a certificate of need to
conduct a reviewable activity relating to a long-term care facility that is not
yet existing and that proposes to reduce or eliminate any alternatives to
inpatient long-term care that were included in a previous, approved certificate
of need application, the director shall review the application under all
applicable criteria established by this rule and by other rules of this chapter
as if the earlier certificate had not been granted.

(A)
In addition to
review under other applicable provisions of the Administrative Code, the
director shall not approve an application for a certificate of need to replace
an existing long-term care facility or to relocate existing long-term care beds
from one site to another unless the application meets all of the criteria
prescribed by this rule.

(B)
Applications submitted for a certificate of need to
replace an existing long-term care facility or to relocate existing long-term
care beds from one site to another must meet the following criteria:

(1)
The applicant or
the person proposed to own or operate the facility must have the legal
authority to operate the long-term care beds that are subject to the
certificate of need; or

(2)
The applicant or the person proposed to own or operate
the facility must have entered into a contract to obtain the legal authority to
operate the beds that are subject to the certificate of need.

(C)
The applicant provides documentation of a
feasible plan to care for the residents served in the beds being replaced or
relocated. The application shall state whether those residents will be offered
admission to the beds
in the new location or replacement facility and
the procedure for facilitating availability of the beds to the
residents.

(D)
The applicant
demonstrates that replacement of the facility is more cost-effective or
otherwise more feasible for the applicant than renovation of the facility being
replaced. This information shall be provided in the form of a detailed study of
the respective costs of renovation and replacement or relocation, taking into
account the useful lives of the respective facilities, or documentation of the
circumstances that make renovation otherwise less feasible.

(E)
The facility being replaced or from which
beds are being relocated is a long term care facility, as defined in paragraph
(P) of
rule 3701-12-01 of the Administrative
Code, and an existing long-term care facility, as defined in paragraph
(I) of
rule 3701-12-01 of the Administrative
Code. If the application proposes relocation of approved beds, the certificate
of need for the beds shall not have been withdrawn, before the decision is made
on the application proposing relocation.

(F)
The replacement of the existing facility
or relocation of the existing or approved beds will not impair the access of
the population served or proposed to be served by the existing facility or the
existing or approved beds to quality long-term care, particularly in the case
of medically underserved populations, including consideration of:

(G)
The applicant documents, and the director shall consider, the impact of the
replacement or relocation project on costs and charges on both a per diem and
an aggregate basis. This documentation shall include portrayal of all costs,
including any costs of acquiring the existing facility or beds, and of how the
costs will be recovered and a demonstration that the costs are reasonable when
compared to the benefits of replacement or relocation.

(A)
In order to assist the director in monitoring any
approved projects for hospital beds recategorized as skilled nursing beds, in
accordance with section
3702.521 of the Revised Code
each hospital for which a certificate of need for skilled nursing beds was
granted shall report the information prescribed by this paragraph in a manner
prescribed by the director. The hospital shall submit the information no later
than the last day of January, April, July and October of each year. The
information reported shall cover the calendar quarter most recently ended. The
information submitted shall include, but not be limited to:

(6)
A written attestation that the skilled nursing beds
have not billed or received reimbursement under Title XIX of the "Social
Security Act," 49 Stat. 286 (1965),
42 U.S.C.
1396 as amended (the medicaid
program).

(B)
After reviewing the aggregate information submitted
under paragraph (A) of this rule, the director may request additional,
patient-specific information from the hospital to verify compliance with this
rule and with the approved application for the certificate of
need.

(C)
For the purposes of this rule, "skilled nursing bed"
means a bed that was approved under former rule 3701-12-233 of the
Administrative Code, effective May 20, 1991, and that is in the portion of the
hospital that participates in the program for health insurance for the aged and
disabled established by Title XVIII of the Social Security Act (1981),
42 U.S.C.
301 , as amended (the medicare program).